MEJA and Blackwater: A Question of Jurisdiction

Assuming the Washington Post is correct, it appears that the Department of Justice may be close to indicting some Blackwater security guards for a shooting that happened last year in Iraq.

The DOJ would bring charges under the Military Extraterritorial Jurisdiction Act (MEJA).

The Congressional Budget Office issued a report recently about the use of contractors in Iraq. In that report, the CBO said, amongst other things, that “MEJA does not apply to civilians working…for federal departments or agencies other than DOD.”

The Blackwater security guards were working as security contractors for the Department of State.

Some argue that MEJA does not cover the Blackwater security guards, and thus DOJ cannot bring charges against the guards for the alleged incident last year in Iraq. Others argue that the 2005 amendment to MEJA expanded its’ provisions to include contractors “supporting the mission of the Department of Defense,” and thus the contractors are subject to prosecution under MEJA.

What do you think?

Denedo watch

For those of you who plan to track the Acting SG's cert petition in Denedo with the same intensity that Al Roker tracked Gustav, its docket number is No. 08-267 (Denedo's that is, not Gustav's). Here's a link to its docket page, which is updated each business day at 1100.

Happy New Term!

Today is the first day of CAAF's 2009 term.

Acting SG vs. JAJG cont'

In West's United States Code Annotated, the notes following 28 U.S.C. § 509 set out the Executive Orders establishing the Federal Legal Council. That Council is "composed of the Attorney General and the representatives of not more than 16 other agencies." The Executive Orders establishing the Council provide, "Whenever two or more Executive agencies are unable to resolve a legal dispute between them, including the question of which has jurisdiction to administer a particular program or to regulate a particular activity, each agency is encouraged to submit the dispute to the Attorney General." The Executive Orders also lay out a procedure for resolving inter-agency legal disputes: "Whenever two or more Executive agencies whose heads serve at the pleasure of the President are unable to resolve such a legal dispute, the agencies shall submit the dispute to the Attorney General prior to proceeding in any court, except where there is specific statutory vesting of responsibility for a resolution elsewhere."

When he was the Assistant Attorney General for the Office of Legal Counsel, Theodore Olson discussed the Federal Legal Council and observed:

[T]o permit [one executive agency or department] to appear in a judicial proceeding in which the United States has exercised its authority to appear as a party (or has otherwise presented its views, e.g., as an amicus), and present views on its own behalf which are independent of or contrary to those presented by the United States, would be inconsistent with the integrity of the Executive in the exercise of his Article II powers and responsibilities. Such a circumstance would, literally, put the Executive in the untenable position of speaking with two conflicting voices, abdicating his constitutional responsibility to "take Care that the Laws [are] faithfully executed."

Litigation Authority of the Equal Opportunity Commission in Title VII Suits Against State and Local Governmental Entities, 7 Op. O.L.C. 47, 65 (1983) (third alteration in the original).

In light of the Executive Orders establishing the Federal Legal Council and the OLC Opinion, was it proper for various military appellate government divisions to simultaneously advocate directly opposite positions regarding CAAF's jurisdiction to hear an appeal of a CCA's ruling on an Article 62 appeal?

In light of the view that the Executive Branch must speak with one voice, should CAAF abandon its longstanding practice of inviting (or even accepting) amicus briefs from all of the appellate government divisions when some particularly important legal issue arises? Isn't the result of such an invitation multiple submissions from a single party (the United States), none of which should adopt a divergent position from another?

Acting SG sides with Code 46 and GAD against JAJG

There is considerable discussion below about the extent to which the Acting SG's cert petition in Denedo was coordinated among the services. Anonymous posters claiming to be involved in the process (we cant' really know, can we?) tell us that there was considerable coordination. (I wish they would also tell us why the Supremes have jurisdiction, but they haven't done that yet.)

Here's what I find interesting. As we discussed some time ago, the Navy-Marine Corps Appellate Government Division (Code 46) and the Army Government Appellate Division (GAD) took the position in Lopez de Victoria and Michael that CAAF had no jurisdiction to review a CCA's ruling on an Article 62 appeal while the Air Force Government Trial & Appellate Counsel Division (JAJG) took the position in Miller and Webb that CAAF did have such jurisdiction. [DISCLAIMER: I was an appellate defense counsel in Miller.] As explained by the appellees in both Miller (before I was one of his counsel) and Webb, taking such an inconsistent position on behalf of the United States actually appears to have been impermissible; differences in litigation positions between various departments and agencies are supposed to be resolved internally rather than flaunted for all to see. Interestingly, in the Denedo cert petition, the Acting SG adopts the position of Code 46 and GAD while rejecting the position of JAJG.

In the Denedo cert petition, the Acting SG writes: "The decision below represents the latest iteration of [CAAF's] efforts to expand its role beyond its congressionally prescribed jurisdiction to 'review * * * specified sentences imposed by courts-martial.' Goldsmith, 526 U.S. at 534." The very first example the cert petition offers of such extra-statutory expansion is United States v. Lopez de Victoria, 66 M.J. 67 (C.A.A.F. 2008).

July Army Lawyer now available

There's a new issue of the Army Lawyer out, which includes an article sure to make the No Man drool: Major Jeffrey S. Thurnher, Drowning in Blackwater: How Weak Accountability over Private Security Contractors Significantly Undermines Counterinsurgency Efforts, Army Law., July 2008, at 64. Here's a link.

More milk cartons?

Can anyone else access CGCCA opinions? I sure can't.

Airing of grievances

A crucial part of Festivus is the airing of grievances. It seems that the Acting SG has been saving up some of his grievances toward CAAF. At the end of a hard-hitting cert petition that largely adopts and presents Judge Ryan's dissent from Denedo v. United States, 66 M.J. 114 (C.A.A.F. 2008), the Acting SG concludes by airing some of his pre-Denedo grievances:

The decision below represents the latest iteration of that court's efforts to expand its role beyond its congressionally prescribed jurisdiction to "review * * * specified sentences imposed by courts-martial." Goldsmith, 526 U.S. at 534; see, e.g., United States v. Lopez de Victoria, 66 M.J. 67 (C.A.A.F. 2008) (permitting appeals to the CAAF from the decisions of the Courts of Criminal Appeals in interlocutory appeals by the government); United States v. Tamez, 63 M.J. 201 (C.A.A.F. 2006) (permitting extension, for "good cause," of the statutory deadline for filing appeals to the CAAF); Loving v. United States, 62 M.J. 235 (C.A.A.F. 2005) (asserting jurisdiction under the All Writs Act to entertain petitions for habeas corpus after there is a final judgment); Kreutzer v. United States, 60 M.J. 453 (C.A.A.F. 2005) (employing All Writs Act to regulate defendant's place of confinement); Goldsmith v. Clinton, 48 M.J. 84 (C.A.A.F. 1998) (employing All Writs Act to enjoin the government from administratively discharging Air Force Officer), rev’d, 526 U.S. 529 (1999). This Court's intervention is warranted, once again, in order to confine the CAAF to its statutory jurisdiction.

Disappointing statement of jurisdiction

Personally, I would like to see the Supreme Court review the issue of whether military appellate courts can issue extraordinary relief in cases like Denedo. That said, I don't believe that Denedo itself, in its current procedural posture, provides a vehicle for doing so. I was looking forward to reading the Acting Solicitor General's analysis of why the case falls within the Supremes' cert jurisdiction. Unfortunately, that "analysis" was limited to a single unenlightening sentence.

The Acting SG's cert petition in Denedo declares, "The jurisdiction of this Court is invoked under 28 U.S.C. 1259(4)." That's it. It tells us nothing about why this case falls within § 1259(4). Under that statutory provision, "[d]ecisions of the United States Court of Appeals for the Armed Forces may be reviewed by the Supreme Court by writ of certiorari in . . . [c]ases . . . in which the Court of Appeals for the Armed Forces granted relief."

In Denedo, CAAF's decretal paragraph "remand[ed] Appellant's petition to the United States Navy-Marine Corps Court of Criminal Appeals for further proceedings . . . . If prejudice is found, the court shall determine whether the requested relief should be granted." Denedo v. United States, 66 M.J. 114, 130 (C.A.A.F. 2008). To me, that doesn't look like a grant of relief. On the contrary, on its face it reserves judgment as to whether relief will ultimately be granted. But even if you disagree with me on that point, I hope you will at least agree that it isn't obvious that CAAF's decision falls within § 1259(4)'s scope. So why didn't the Acting SG set out why the Supremes should conclude that CAAF granted relief for purposes of § 1259(4)? And what should he have said if he had addressed that issue?

BREAKING NEWS: Acting SG's cert petition in United States v. Denedo

Here's a link to the cert petition that the United States filed today challenging CAAF's ruling in Denedo v. United States, 66 M.J. 114 (C.A.A.F. 2008). Here's the QP:

Whether an Article I military appellate court has jurisdiction to entertain a petition for a writ of error coram nobis filed by a former service member to review a court-martial conviction that has become final under the Uniform Code of Military Justice, 10 U.S.C. 801 et seq.